Children (Equal Protection from Assault) (Scotland) Bill: MSP Briefing Stage 3

2 October 2019

The Children (Equal Protection from Assault) (Scotland) Bill plays an important role to ensure comprehensive legal protection from violence for all children in Scotland. All children have an equal human right to respect for their dignity and physical integrity. Assaulting a child for the purpose of punishment should never be lawful. Legalised violence against children in one context risks a tolerance of violence against children generally. There is no such thing as a reasonable level of violence.

Standards set by the United Nations, the Council of Europe, and the European Union and an overwhelming amount of expert evidence makes clear of the need for this legislation. We welcome Scotland joining the 57 countries across the world who have already provided comprehensive protection against assault for all children.

The United Nations Convention on the Rights of the Child (UNCRC) makes clear that children have a right to legal protections which recognise their particular vulnerabilities and Article 19 of the UNCRC requires states to take legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence. The UN Committee on the Rights of the Child has affirmed that this includes protection from all forms of corporal punishment. At present, Scottish children have less legal protection than adults from assault. Scots law currently allows a defence of “justifiable assault” to be used where a parent has assaulted a child for the purposes of physical punishment. Other UN Committees monitoring the implementation of international treaties, which we are part of, including the two International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Human Rights Committee and the UN Committee Against Torture have noted their concern about the lack of explicit prohibition of corporal punishment in loco parentis and the existing legal defence of justifiable assault in Scotland. Our written evidence to the Equalities and Human Rights Committee (EHRiC) explains the human rights principles underpinning this bill in further detail.

In our response to the EHRiC’s inquiry into Human Rights and Parliament, we highlighted the role of Parliament as a human rights guarantor and in particular the role MSPs can play in ensuring that children and young people are recognised as rights holders. That Committee’s report acknowledged the role that Parliament has played in the past, including the creation of a Children and Young People’s Commissioner, to advance human rights and in particular children’s rights. This bill provides another opportunity for Parliament to act as a human rights guarantor and secure the rights of children in Scotland by providing them with equal protection, in law, from assault.

The Commissioner fully supports the Children (Equal Protection from Assault) (Scotland) Bill, which will ensure all children receive protection in law from assault.

The EHRiC considered evidence from a range of experts, including those opposed to the bill. In his evidence, the Commissioner emphasised the need for this legislation and expressed the view that it provides the legal clarity and certainty required to ensure equal protection from assault to children. This was the conclusion of the majority of evidence heard by the Committee in relation to this bill.

The Commissioner does not believe this bill requires any amendment.

Those amendments beginning “for the avoidance of doubt” create the impression that doubt exists. That is not the case. Amendment 2 may create the impression that a best interests case could be made for an assault of a child. International Human Rights bodies, including the UN Committee on the Rights of the Child (General Comment 8, paragraph 26) are clear that there can be no best interests justification for any form of corporal punishment. As the Commissioner said in evidence to the EHRiC, “There is absolutely no right to use physical violence as part of respect for private and family life.”

In their written evidence to the Committee, the Crown Office and Procurator Fiscal Service (COPFS) explained in detail how the thresholds under which a charge of assault would be considered for prosecution, under the Scottish Prosecution Code issued by the Lord Advocate. In his oral evidence to the Committee, the Lord Advocate provided further clarification on the operation of the Code in regard to allegations of assault and reassured Committee members that the repeal of the defence of justifiable assault “would not mean that the prosecutor would ignore the special features of the relationship between parent and child”. He made a commitment to members that, if the bill is passed, he will issue Lord Advocate’s Guidelines to the chief constable of Police Scotland to provide a “proportionate and appropriate response to individual circumstances” where is an allegation of the assault of a child by parents.

Experience from other jurisdictions

Former Irish Senator, Jillian van Turnhout, provided the EHRiC with evidence of the experience in Ireland, where the defence of “reasonable and moderate chastisement” was removed from Irish law via an amendment she proposed to the Children First Bill 2014 which had a similar effect to this bill. In Ms van Turnhout’s oral evidence, she emphasised that the change in law had not resulted in excessive criminalisation of parents.

The experience in New Zealand since their law change in 2007 has been very positive. The Commissioner recently had the opportunity to discuss the issue with social workers, police and family groups in New Zealand and they were unanimous that the law change has been a positive move which has resulted in progressive change in public opinion. Professionals noted that the clarity in law, that violence for the purpose of punishment was not acceptable, made it easier to provide appropriate support for families and had not led to increases in criminal justice responses.

The bill as introduced is simple, effective and clear. It has our full support and requires no amendment.